Alan,
I wish you were here in the states to use! I agree on all your points, expect them of council, and wish my experiences followed these conditions better. I also agree that the reason these large deal contracts end up in lawsuits so much is from the business practice to always feel like you have the upper hand and the other guys is getting the short end. I can see how this leads to language and logic that can be severely flawed. This is more a reflection of the business process than the legal profession in this case.
I am sorry if I generalized too much in my post, that's not fair. It was a representation of the 10 or so odd times I have had to develop contracts with clients' or employers' for projects for them to third parties for work and rights agreements. It was extremely frustrating experience every time since the simple clear language we started with got turned into pages of unreadable and non-understandable text. When I would question them about the changes, half the time they would end up saying they could not give a clear answer. These were for some very straight forward services or photo rights and such. When I would ask why we needed so much non understandable language, they would just reply it was standard to do so and not professional to not do so. I would also get the reply that it was unprofessional to use plain language in the contract.
All this was a real mess every time since something that should have taken a very short time ended up sometimes taking weeks to get done and cost a lot of money. Even when I would send in simple boilerplate contracts they would balloon. The worst was that the resulting contracts would really scare the potential vendors and media folks. A few times we lost potential folks at this stage and a few media folks bumped up their licensing fees at this point in the deal... Since many of these were small contracts it was hard for the other parties to afford to pass it by council for review. It also really ballooned the costs on some simple tasks for the clients.
Since I was working on the clients' or employers' behalf they would usually end up just saying do what the lawyer advises. I didnt hire the lawyers, but they were all reputable and small to large firms that do this stuff all day long. A couple of time I was able to simplify the photo rights agreements when we had many photographers balk at the lengthy contract that came from the lawyers.
I also know what it is like to be on the receiving end of this kind of contract writing. One of my clients is a very very large health care provider. The contract I got from them to work on a patient education cdrom was about 45 pages... It was virtually unreadable language. I almost just signed it and sent it in, but decided to stick it out and carefully go through it and create a flow chart to follow the logic. While doing this I found the clauses that had me indemnifying them for all the content validity in the product that they were creating! This was medical information developed by physicians and they wanted me to legally take responsibility for what the content said! There was no reciprocal indemnification for me at all. Even after explaining that they were creating the content their lawyers still wanted me to take responsibility for content validity. It took a couple weeks and three of their lawyers to get the clause removed that had me indemnifying them for the content and just get me simple reciprocal indemnification since if they did ever make a mistake in the content I might get caught up in any lawsuits being the producer on the cdrom. All I wanted was an even, fair sharing of responsibilities.
I could never get a good reason from the lawyers in any of these cases why having a very simple clear contract that fairly spelled out what each side was responsible for, deadlines, and a few honest contingencies. In every other business transaction I have done that we have drafted documents like this for legally binding contracts and it has worked swimmingly!
Perhaps I just dont do business in the regular fashion. I tend to just want a fair deal that both sides walk away from feeling like they were happy and want to do a deal again soon. Maybe this is why I never gotten rich in business, but had a good time, made a fair wage, and am on good terms with all my clients...
We have had several attempts at plain language contract reform in the US, but every attempt has failed. It is probably because it would gum up the works of how things have come to be done.
Sorry for the rant, it is just the frustration I have had with contracts in the last 10-15 years doing multimedia work. i have not had great luck dealing with lawyers in contract matters. I hope my experience is unique and most of the time these things go smoother for other folks.
cheers
Jeffrey Reynolds
On May 16, 2005, at 2:35 PM, [EMAIL PROTECTED] wrote:
I hear you, Jeff. As a lawyer, publisher, and hobbyist software developer, I
hear you loud and clear.
I can't speak for the lawyers you've worked with, but only from my own
experiences in the legal profession after 12 years. Here are some things to
consider:
1. Most of the lawyers I have met and worked with are straight-shooters. To
try to make something complex out of what should be simple for the sole
purpose of creating legal problems down the road is a violation of the rules
of ethics and conduct that govern lawyers across the country. If you think
your lawyer is doing this, it's past time to find a new lawyer.
2. As in every profession, there are folks who are good at what they do, and
folks who are ... well, not so good. If your lawyer is doing something that
you feel is not your best interest, see if he/she can explain it to you in a
way that satisfies you completely. If he/she can't -- well, as long as it's
legal, you can instruct your lawyer to do it YOUR way. Alternatively, and
again, it may be time to find a new lawyer.
3. Contracts can be tough. I've negotiated my fair share, and I've litigated
MORE than my fair share of contracts that I DIDN'T negotiate. In drafting
contracts, lawyers call upon their expertise to try to anticipate problems
and pitfalls, and to make clear the parties' intent so that when something
bad happens, the contract spells out how things should be handled. The
problems come when the parties CAN'T agree -- then lawyers tend to massage
the language, perhaps making it ambiguous so that if a problem comes up, the
language at least ARGUABLY supports a view that favors the client. The idea
is that ambiguous language can at least serve as the basis for a good faith
argument that the contract should be interpreted a certain way -- in many
situations, this can be better than a contract that simply doesn't address
the issue at all. Mind you, the lawyer probably isn't intentionally trying
to make something ambiguous -- it just BECOMES ambiguous as he/she
negotiates one draft after another with the lawyer on the other side. The
end result is language that both sides can live with because neither side is
getting exactly what they want. When BOTH sides feel they have the upper
hand, it's usually the contract language that suffers, becoming ambiguous
enough to support both sides' interpretation.
And that, Jeff, is the stuff that law suits are made of. But a lawyer has
done his job when he's highlighted the potential problems/pitfalls for his
client, negotiated away from those problems as much as possible, and
explained the reason/rationale behind the whole process for the client to
make an educated decision about whether the deal still represents good and
fair value when negotiations are done.
Unfortunately, even then, there's no guaranty against litigation. When a
dispute arises, a litigator who truly represents his client's best interests
should recommend first and foremost that the parties try to work it out
without the filing of a law suit. Once you go down that road, it's usually
long and hard, and retreat gets tougher with every step towards the
courthouse.
Anyway, just my own thoughts in defense of lawyers who always, always, always try to do right by their clients. Thanks for listening.
ALAN S. GOLUB, ESQ. Dwyer Golub & Isabel, P.C.
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